August 06, 2007

Best Of Deliberations: The Bias In The Mirror

Deliberations is on vacation. Here's a post that first appeared in March 2007:

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It may be "axiomatic that the purpose of voir dire is to ensure . . . an impartial jury." So said the Seventh Circuit in U.S. v. McAnderson in 1990 -- and so say dozens of others, if you Google "purpose of voir dire." But as axioms go, this one is troublesome. Its echoes have confused many lawyers as they prepared to select a jury for the first time.

The "purpose is to eradicate bias" axiom leads lawyers to believe and spread two myths about jury selection. Myth No. 1 is that bias in its pure form is what shapes jurors' decisions. Myth No. 2 is that if you ask the right questions, "ferreting out" juror bias is always possible. Experience teaches that both these beliefs are wrong, as I've started to discuss here and here. (And why do we always say "ferret out"? If you Google that with "voir dire," you get 622 hits.)

An axiom we can use

Here's a more useful axiom. One critical purpose of voir dire is to ferret out bias, yes: your own. (Try Googling that. Not a word.) Lawyers stereotype potential jurors at least as vigorously, and at least as predictably, as jurors are ever likely to stereotype us or our clients.

Try this quiz with two people I heard about on two different radio programs this week. I didn't change the facts, although I made up a few consistent details. Pretend you have these two women in the jury box:

1. Amy J. Ms. J. is about 40 years old, married, and a homemaker. She lives in a middle-class suburb of a Pacific Northwest city. Her primary outside activities, and those of her husband, revolve around the Christian church they attend. They are longtime members of the church, and she is the director of youth education there. She has a bright, happy voice.

2. Kathy B. Ms. B. is about 60 years old, married with adult children. She works as a school janitor in a Wisconsin town beyond the Milwaukee suburbs. She has a low, slightly dull voice, and her speech includes noticeably long pauses. After one of these pauses, she says she doesn't know how to put the answer to your question into words. Her work hours are from 3:00 in the afternoon to 11:30 at night. It is physical work, sweeping, vacuuming and cleaning desks and shelves. During a recent construction project, she mentions, she was "eating a lot of dust from the drywall."

Got it? What might you conclude about these women's personalities and reactions?

Are either or both social conservatives? Why?

Would either of them tend toward a resentful, negative attitude? Why?

How would either of them react to issues of class and rank? Why?

What degree of leadership would either of them show in a group? Why?

Answers to the quiz

If you asked which Christian church Ms. J. belongs to, you were on the right track toward unearthing your own stereotypes. It's the United Church of Christ: her church's mission statement stresses "diversity, caring, humility and acceptance." Ms. J. and her husband teach a class to 14- and 15-year-olds called "Faith and Sexuality," where they detail the symptoms of sexually transmitted diseases and show the kids different kinds of condoms. "We've covered [sex] so thoroughly" by the time they're done, she says, "that it's not such a forbidden fruit." She's probably as liberal as your teenage neighbor with the nose ring, as Wednesday's NPR story on sex education in churches makes clear.

As for Ms. B., the school custodian, she loves her life and everyone in it. She was on Wisconsin Public Radio, and in her local paper, because she has just been named outstanding custodial employee at her school. "When I've got a vacuum cleaner in my hand, don't even try bothering me," she told the paper. "I'm at home." On the radio, she explained, "I'm very much relaxed and I love what I'm doing." Asked why she liked her work so much, she paused so long the radio host asked if she was still there. "You get to see a lot of projects that the students are doing, " she said finally. "You get to meet a lot of great teachers, and you get to see a side of life that students and nobody gets to see." The conviction and calm in her flat voice were striking. She'd be a force on any jury.

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Best Of Deliberations: The Bias In The Mirror

Deliberations is on vacation. Here's a post that first appeared in March 2007:

_______________________

It may be "axiomatic that the purpose of voir dire is to ensure . . . an impartial jury." So said the Seventh Circuit in U.S. v. McAnderson in 1990 -- and so say dozens of others, if you Google "purpose of voir dire." But as axioms go, this one is troublesome. Its echoes have confused many lawyers as they prepared to select a jury for the first time.

The "purpose is to eradicate bias" axiom leads lawyers to believe and spread two myths about jury selection. Myth No. 1 is that bias in its pure form is what shapes jurors' decisions. Myth No. 2 is that if you ask the right questions, "ferreting out" juror bias is always possible. Experience teaches that both these beliefs are wrong, as I've started to discuss here and here. (And why do we always say "ferret out"? If you Google that with "voir dire," you get 622 hits.)

An axiom we can use

Here's a more useful axiom. One critical purpose of voir dire is to ferret out bias, yes: your own. (Try Googling that. Not a word.) Lawyers stereotype potential jurors at least as vigorously, and at least as predictably, as jurors are ever likely to stereotype us or our clients.

Try this quiz with two people I heard about on two different radio programs this week. I didn't change the facts, although I made up a few consistent details. Pretend you have these two women in the jury box:

1. Amy J. Ms. J. is about 40 years old, married, and a homemaker. She lives in a middle-class suburb of a Pacific Northwest city. Her primary outside activities, and those of her husband, revolve around the Christian church they attend. They are longtime members of the church, and she is the director of youth education there. She has a bright, happy voice.

2. Kathy B. Ms. B. is about 60 years old, married with adult children. She works as a school janitor in a Wisconsin town beyond the Milwaukee suburbs. She has a low, slightly dull voice, and her speech includes noticeably long pauses. After one of these pauses, she says she doesn't know how to put the answer to your question into words. Her work hours are from 3:00 in the afternoon to 11:30 at night. It is physical work, sweeping, vacuuming and cleaning desks and shelves. During a recent construction project, she mentions, she was "eating a lot of dust from the drywall."

Got it? What might you conclude about these women's personalities and reactions?

Are either or both social conservatives? Why?

Would either of them tend toward a resentful, negative attitude? Why?

How would either of them react to issues of class and rank? Why?

What degree of leadership would either of them show in a group? Why?

Answers to the quiz

If you asked which Christian church Ms. J. belongs to, you were on the right track toward unearthing your own stereotypes. It's the United Church of Christ: her church's mission statement stresses "diversity, caring, humility and acceptance." Ms. J. and her husband teach a class to 14- and 15-year-olds called "Faith and Sexuality," where they detail the symptoms of sexually transmitted diseases and show the kids different kinds of condoms. "We've covered [sex] so thoroughly" by the time they're done, she says, "that it's not such a forbidden fruit." She's probably as liberal as your teenage neighbor with the nose ring, as Wednesday's NPR story on sex education in churches makes clear.

As for Ms. B., the school custodian, she loves her life and everyone in it. She was on Wisconsin Public Radio, and in her local paper, because she has just been named outstanding custodial employee at her school. "When I've got a vacuum cleaner in my hand, don't even try bothering me," she told the paper. "I'm at home." On the radio, she explained, "I'm very much relaxed and I love what I'm doing." Asked why she liked her work so much, she paused so long the radio host asked if she was still there. "You get to see a lot of projects that the students are doing, " she said finally. "You get to meet a lot of great teachers, and you get to see a side of life that students and nobody gets to see." The conviction and calm in her flat voice were striking. She'd be a force on any jury.

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